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FOREWORD

PSYCHIATRY AND THE DEATH PENALTY: EMERGINGPROBLEMS IN VIRGINIA

Richard J. Bonnie*

V IRGINIA'S revised capital sentencing procedures took effecton July 1, 1977. Today, eight men sit on death row in Meck-

lenburg.' Whatever one's views on the ethics or the efficacy of thedeath penalty, the reinstitution of capital punishment presents is-sues of great moral and social significance. Of special importanceto the judiciary and the bar is the need to assure fairness and con-sistency in the process of imposing the ultimate sanction.

I assume, for present purposes, that aggravated forms of homi-cide such as those classified as capital offenses in Virginia may per-missibly be made punishable by death.' But this assumption con-cerns offenses in the abstract; we are not thereby advised whichcapital offenders should pay for their deadly deeds with their own

* Professor of Law, University of Virginia. The Foreword is a modified version of an ad-

dress given at the Third Annual Symposium on Mental Health and the Law in Richmond,Virginia on September 8, 1979.

The eight individuals are Michael Marnell Smith, see Smith v. Commonwealth, 219 Va.455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1978); Alton Waye, see Waye v.Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442 U.S. 924 (1979); Morris OdellMason, see Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116 (1979), cert. denied, 100 S.Ct. 239 (1980); James T. Clark, see Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784(1979), cert. denied, 100 S. Ct. 741 (1980); Frank Coppola, see Cpppola v. Commonwealth, 220Va. 243, 257 S.E.2d 797 (1979), cert. denied, 100 S. Ct. 1069 (1980); Charles Sylvester Stamper,see Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied, 100 S. Ct.1666 (1980); Joe Giarratano, see Giarratano v. Commonwealth, appeal docketed, No. 79-1619 (Va. Feb. 25, 1980); and William Earl Justus, see Justus v. Commonwealth, appealdocketed, No. 79-1326 (Va. Feb. 25, 1980). This information reflects death sentences issuedthrough Dec. 31, 1979.

The last person executed in Virginia was Carroll L. Garland, a 27-year-old black manconvicted of murder, who was electrocuted on March 2, 1962.

2 By all measures of public opinion, it appears that a painless form of execution is notcategorically unacceptable in contemporary American society; thus, there are some types of

HeinOnline -- 66 Va. L. Rev. 167 1980

Virginia Law Review [Vol. 66:167

lives. The process of selection has independent moral and legal sig-nificance. In each case, those who administer criminal jus-tice-prosecutors, jurors, courts, and governors-have it withintheir power to spare a human life and to show mercy. They musttherefore ask not only "what did this person do?" but also "who ishe and why did he do it?"

This translation from the abstract acceptability of the deathpenalty to its imposition in individual cases calls attention to thefundamental importance of establishing and administering a pro-cess that selects in a fair and reliable way those to whom the deathpenalty will be applied. We must demand consistency-whether aperson is sentenced to death should not depend on where he istried, on which judge is sitting, or on which jury has been impan-eled. We must also seek accuracy in the fundamental moral sense;in each case we must be convinced that the defendant's conductand culpability clearly distinguish him from other murderers whoare not thought to deserve the ultimate penalty. At this level ofinquiry, crucial questions arise: What are the proper grounds ofdistinction? On the basis of what criteria should we decide whoshall live and who shall die?3

homicide for which the death penalty is not regarded as an excessive or disproportionatepunishment.

I am also prepared to assume that the threatened imposition of the death penalty doesexert a deterrent for the most rational and calculated homicidal offenses. I refer particularlyto terrorism and murder for hire. In contrast, the deterrent effect of the threatened imposi-tion of capital punishment would appear to be questionable in situations when the homici-dal act occurs without significant prior reflection about the consequences, as is the case inmany rape-murders. Killings in the course of armed robbery account for most capitalmurders in Virginia; for these, categorical assumptions one way or the other seem intuitivelyimplausible.

Although my present purpose is not to tangle with the philosophical questions concern-ing the justifications for punishment in general, or capital punishment in particular, let memake two general observations in passing.

First, general prevention, not retribution, provides the "general justifying aim" of all pun-ishment, including the death penalty. See generally H.L.A. HART, PUNISHMENT AND RESPON-

smimrry 1-27 (1968).Second, retribution is the only acceptable principle of selection or "distribution" of pun-

ishment in capital cases. General deterrence, incapacitation, and redemption are not legiti-mate criteria for selecting those who will be executed and for distinguishing those who willbe permitted to live out all or most of their lives in the penitentiary. I do not take thisposition with respect to all criminal punishment; in fact, I believe that many of the recent"just desert" sentencing proposals have been inspired by an overdose of retributivism.Where incarcerative sentences are concerned, I believe that general deterrent, intimidative,and incapacitative effects of alternative sentences may legitimately be taken into account so


Foreword

Over the past two years, I have been making a careful study ofthe administration of Virginia's revised capital sentencing proce-dures. Although any sweeping conclusions would be premature atthis early date, I am troubled by a cluster of problems relating tothe quality and scope of psychiatric testimony in capital cases.First, serious problems have already emerged concerning proof ofaggravating circumstances, especially the appropriate use ofclinical testimony concerning the dangerousness of the defendant.Because such testimony is not as accurate or reliable as we mightwish, it should be carefully limited. Second, because the statutorymitigating circumstances emphasize psychological abnormality, ex-pert testimony tends to occupy a central role in any capital defen-dant's efforts to persuade the judge and jury to spare him. The useof experts raises a serious question concerning both access to andthe quality of forensic evaluation in capital cases.

In this Foreword to the Twenty-Fourth Annual Survey of Devel-opments in Virginia Law, I would like to address these importantissues. After an examination of the constitutional background ofcapital sentencing and of Virginia's capital punishment procedures,I will analyze the uses and limits of psychiatric testimony in capi-tal cases. In so doing, I will suggest some specific steps which Vir-ginia judges, legislators, and forensic specialists might take to pre-serve the essential value of fairness in the solemn process ofadministering the death penalty.

I. BACKGROUND: CONSTITUTIONAL STANDARDS FOR CAPITAL

PUMSHMENT

For a decade, opponents of the death penalty focused their ef-forts to abolish capital punishment in this country on the UnitedStates Supreme Court, arguing that capital punishment was inher-ently unconstitutional because it contravened the "evolving stan-dards of decency which mark the progress of a maturing society,"'and therefore amounted to the cruel and unusual punishment pro-scribed by the eighth amendment to the Constitution of the UnitedStates. When the Supreme Court finally agreed to address this

long as appropriate attention is paid to the accuracy and reliability of the decision-makingprocess. On the other hand, the finality of the death penalty and the special need for consis-tency in its application preclude the use of probability estimates concerning defendants'future behavior as a basis for choosing between death and life imprisonment.

Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion by Warren, C.J.).

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170 Virginia Law Review [Vol. 66:167

question in 1972 in Furman v. Georgia,5 only Justices Marshall andBrennan agreed with the abolitionist position.'

The other seven Justices focused their attention on another ofthe challengers' arguments-that the process by which the deathpenalty was administered was unfair and discriminatory. In moststates the decision whether to impose the death penalty rested en-tirely within the discretion of the jury or sentencing judge. Thechallengers argued that since no criteria governed this selection,those sentenced to death constituted a "capriciously selected ran-dom handful"7 of persons convicted of capital crimes. Even worse,the challengers claimed, the death penalty was imposed dispro-portionately on defendants who were black and poor.

The Georgia statute before the Court in Furman classified firstdegree murder, rape, and armed robbery as capital crimes and leftthe decision whether to impose the death penalty in lieu of life im-prisonment entirely in the hands of the jury. Three members of theSupreme Court were convinced that such statutes did, indeed, cre-ate a "substantial likelihood" that the death penalty would be im-posed arbitrarily' and joined with Justices Marshall and Brennan,forming a majority of five, to strike down the Georgia statute, and,as a result, virtually all of the state statutes then in effect, includingVirginia's.

Between 1972 and 1976, thirty-five states enacted new death pen-alty statutes in response to the Furman decision. The states re-sponded to Furman in two entirely different ways. Some states, in-cluding Virginia, tried to minimize the risk of arbitrariness byrequiring the imposition of the death penalty for certain crimes.These so-called mandatory statutes generally applied to certainspecified types of homicides, such as those committed in the courseof a rape or armed robbery, those committed by a person serving alife term, or those involving the killing of a police officer. Otherstates attempted to preserve some degree of discretion but to re-duce the risk of arbitrariness through normative procedural con-straints. These statutes usually provided for a separate sentencinghearing at which the judge or jury would consider evidence offered

408 U.S. 238 (1972).

6 See id. at 257 (Brennan, J., concurring), 315 (Marshall, J., concurring).

See id. at 309-10 (Stewart, J., concurring).See id. at 240 (Douglas, J., concurring), 306 (Stewart, J., concurring), 310 (White, J.,

concurring).


Foreword

in aggravation and mitigation and would decide whether to imposethe death penalty according to specified statutory criteria, a pro-cess policed by appellate review.

In a series of cases decided in 1976, the Supreme Court reviewedrepresentative statutes of each type. It upheld the statutes whichhad allowed, in varying degrees, consideration of mitigating cir-cumstances and had permitted the structured exercise of discre-tion. On the other hand, the Court invalidated the statutes, likeVirginia's, that had banned sentencing discretion altogether andhad prescribed death as a mandatory penalty for certain types ofhomicides.10

Although no majority on the Court accepted any single point ofview, several basic propositions did clearly emerge. First, "the pen-alty of death is qualitatively different from a sentence of imprison-ment, however long . . . [and] . . . [b]ecause of that qualitativedifference, there is a corresponding difference in the need for relia-bility in the determination that death is the appropriate punish-ment in a specific case."" The Court's corollary proposition wasthat the death penalty may "not be imposed under sentencing pro-cedures that [create] a substantial risk that it [will] be inflicted inan arbitrary and capricious manner. 1' 2 Whether a state's capitalsentencing procedures satisfy this constitutional requirement is de-termined, the Court declared, by a careful review of the decision-making processes and the criteria as they appear on the face of thestatute and as they are administered in practice.

Applying these principles, the majority of the Court upheld thecapital sentencing procedures of Georgia, Florida, and Texas. 3 Ineach case, the Court concluded that the statutory scheme ade-quately structured the exercise of discretion by requiring a separateproceeding for choosing, after conviction of a capital offense, be-tween death and life-a proceeding which approximated the care-fully structured process by which guilt is determined rather than

Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Gregg v.Georgia, 428 U.S. 153 (1976).

'1 Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v. North Carolina, 428 U.S. 280(1976).

" Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (opinion by Stewart, Powell, andStevens, JJ.).

1 Gregg v. Georgia, 428 U.S. 153, 188 (1976) (opinion by Stewart, Powell, and Stevens, JJ.).13 Jurek v. Texas, 428 U.S. 262 (1976); Prffitt v. Florida, 428 U.S. 242 (1976); Gregg v.

Georgia, 428 U.S. 153 (1976).

1980]



the traditionally unstructured process of sentencing.At the same time, the Court struck down the mandatory statutes

of North Carolina and Louisiana because, in Justice Stewart'swords, "in capital cases the fundamental respect for humanity un-derlying the Eighth Amendment . requires consideration of thecharacter and record of the individual offender and the circum-stances of the particular offense as a constitutionally indispensablepart of the process of inflicting the penalty of death."'4 JusticeStewart continued:

A process that accords no significance to relevant facets of thecharacter and record of the individual offender or the circum-stances of the particular offense excludes from consideration infixing the ultimate punishment of death the possibility of compas-sionate or mitigating factors stemming from the diverse frailties ofhumankind.15

The Court reinforced the emphasis on potential mitigating fac-tors in a 1978 decision, Lockett v. Ohio,"6 striking down an Ohiostatute that restricted the type of evidence the defendant could in-troduce in mitigation. This decision is particularly germane to thetopic of psychiatric evidence because the Ohio statute required theimposition of the death penalty unless the defense could prove oneof three mitigating factors, one of which was that "the offense wasprimarily the product of the offender's psychosis or mental defi-ciency .... "17 The Court said in Lockett that the jury must bepermitted to consider "as a mitigating factor, any aspect of the de-fendant's character or record and any of the circumstances of theoffense that the defendant proffers as a basis for a sentence lessthan death."'" And further, the Court stated that an individualizeddetermination of the appropriateness of the death sentence was re-quired because "[t]he need for treating each defendant in a capitalcase with a degree of respect due the uniqueness of the individualis far more important than in noncapital cases."'"

"1 Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (opinion by Stewart, Powell, andStevens, JJ.).

15 Id.,I 438 U.S. 586 (1978).7Id. at 607 (quoting Oto Rav. CODE ANN. § 2929.04(B) (1975)).,Id. at 604 (emphasis omitted).

Id. at 605.


Foreword

II. VIRGINIA'S RESPONSE: SENTENCING PROCEDURES IN CAPITAL

CASES

The capital sentencing procedures adopted by the Virginia Gen-eral Assembly in the wake of the United States Supreme Court's1976 decisions were modeled after the Georgia and Texas statutesupheld by the Court.2 The General Assembly classified six subcat-egories of first degree murder as capital murder-premeditatedmurder in the course of armed robbery, kidnapping, or rape; murderfor hire; premeditated murder of a police officer; and premeditatedmurder by a person serving a prison sentence.2 Once a person hasbeen convicted of a capital offense, a separate proceeding is held todetermine whether death or a sentence of life imprisonment shouldbe imposed.22

The death penalty may not be imposed unless the court or thejury finds either of two aggravating circumstances beyond a reason-able doubt. One such circumstance refers to the future dangerous-ness of the offender-"that there is a probability that the defen-dant would commit criminal acts of violence that would constitutea continuing serious threat to society;" and the other refers to the"vileness" of the offense-"that [the defendant's] conduct in com-mitting the offense for which he stands charged was outrageously orwantonly vile, horrible or inhuman in that it involved torture, de-pravity of mind or an aggravated battery to the victim." 3

If the court or jury finds, upon proof beyond a reasonable doubt,either or both of these aggravating circumstances, it is then re-quired to consider all of the circumstances of the case, includingevidence in mitigation, in order to decide whether or not "to rec-ommend that the penalty of death be imposed. 24 If the jury does"recommend" that the penalty of death be imposed, the circuitcourt is required to conduct its own independent review to deter-mine "whether the sentence of death is appropriate and just. 2 5 If

20 The Supreme Court of Virginia rejected a constitutional challenge to the Virginia stat-ute, on the strength of Gregg and Jurek, in Smith v. Commonwealth, 219 Va. 455, 248S.E.2d 135, cert. denied, 441 U.S. 967 (1978). See Criminal Procedure, 1978-1979 VirginiaSurvey, 66 VA. L. REV. 261, 264 (1980).

21 See VA. CODE ANN. § 18.2-31 (Cum. Supp. 1979). See generally Criminal Procedure,1976-1977 Virginia Survey, 63 VA. L. REV. 1408, 1415 (1977).

2 See VA. CODE ANN. § 19.2-264.2 to .5 (Cum. Supp. 1979).23 Id. at § 19.2-264.2.21 See id. at § 19.2-264.4(C).

I Id. at § 19.2-264.5.

1980]


Virginia Law Review

the circuit court decides to impose the sentence of death, the de-fendant is then entitled to automatic review by the Supreme Courtof Virginia. In conducting its review, the Supreme Court is in turndirected to "consider and determine" in every case "[w]hether thesentence of death was imposed under the influence of passion,prejudice or any other arbitrary factor;" and "[w]hether the sen-tence of death is excessive or disproportionate to the penalty im-posed in similar cases, considering both the crime and thedefendant."26

Ill. DEFINING THE PROPER BOUNDARIES OF PSYCHIATRIC TESTIMONY

IN CAPITAL CASES

By requiring the states to individualize the capital sentencingprocess, the Supreme Court has virtually assured routine participa-tion by mental health professionals, especially psychiatrists, in thesentencing phase of capital murder trials. This has clearly been thecase in Virginia during the last two years. In order to assist boththe bar and the mental health professions in discerning the prop-er boundaries of clinical testimony, I will address two key questionspresented by Virginia's capital sentencing scheme: First, what rolecan mental health professionals legitimately play in predicting ac-curately the "dangerousness" of a particular defendant-one of thekey elements of aggravation required by the statute? Second, whatare the parameters of clinical judgments concerning the mitigatingfactor of mental abnormality under the Virginia statute? Discus-sion of these questions will underscore both the utility and the lim-its of psychiatric testimony in capital cases. Some additional obser-vations will be made about appropriate pretrial evaluationprocedures.

A. Proof of Aggravating Circumstances: Dangerousness

One of the two specific aggravating circumstances that must beconsidered by the judge or jury under the Virginia capital senten-cing procedure is the likelihood that the defendant will commit ad-ditional criminal acts of violence in the future and would constitutea continuing serious threat to society. This inquiry, concerning theso-called "dangerousness" of the defendant, is somewhat unique to

" See id. at § 17-110.1(C).

[Vol. 66:167


1980] Foreword

Virginia-only three other states have similar provisions2 -and isfraught with ethical problems.2s

We might well ask, at the outset, whether the selection of capitaldefendants to be considered for execution should depend onwhether a judge or jury believes that there is "a probability" that a

" Under the Texas statute, which classifies five types of murder as capital murder, see

TEX. PENAL CODE ANN. § 1903 (Vernon 1974), the death penalty may not be imposed upon aperson convicted of capital murder unless three additional circumstances are found beyond areasonable doubt, one of which is the "probability that the defendant will commit criminalacts of violence that would constitute a continuing threat to society." Tax. CODE CIM. PROC.ANN. art. 37.071(b)(2) (Vernon Cum. Supp. 1979).

Under the Idaho statute, which classifies first degree murder as a capital offense, thedeath penalty may not be imposed unless the court finds at least one of 10 aggravatingcircumstances, one of which is that the "defendant, by prior conduct or conduct in the com-mission of the murder at hand, has exhibited a propensity to commit murder which willprobably constitute a continuing threat to society." IDAHO CODE § 19-2515(f)(8) (1979). Hav-ing found one aggravating circumstance beyond a reasonable doubt the court must imposethe death penalty unless mitigating circumstances outweigh the gravity of the aggravatingcircumstances. See id. at § 19-2515(b).

Under the Washington statute, which classifies first degree murder as capital murder, seeWASH. REV. CODE ANN. § 9A.32.040 (Cum. Supp. 1978), the death penalty may not be im-posed unless the court or the jury finds beyond a reasonable doubt (1) that the prosecution hasproved at least one of eight aggravating circumstances listed in § 9A.32.045; (2) that"there are not sufficient mitigating circumstances to merit leniency;" (3) that the evidence attrial established the guilt of the accused with clear certainty; and (4) "that there is aprobability that the defendant would commit additional criminal acts of violence that wouldconstitute a continuing threat to society." Id. at § 10.94.020.

These statutes should be distinguished from the "prior history" provisions included inmost capital sentencing statutes. Although the rationale for such provisions may be in-capacitative, no predictive finding is required. Thus most states with capital sentencing pro-visions include as one of the specified aggravation circumstances-but not as a requiredfinding-proof that the defendant has a "previous felony conviction involving the use or threatof violence" or "a substantial history of serious assaultive convictions" or similar language.See, e.g., CONN. GEN. STAT. ANN. § 53a-46a(g)(2) (West Cum. Supp. 1978); LA. CODE CRIM.PRoc. ANN. art. 905.4(c) (West Cum. Supp. 1979); NEv. REv. STAT. § 200.033(2) (1977); Wyo.STAT. § 6-4-102(h)(ii) (1977). Another group of states have more limited versions of such "priorhistory" circumstances-proof that the defendant had a prior conviction for murder. See, e.g.,ILL. ANN. STAT. ch. 38, § 9-1(b)(3) (Smith-Hurd 1979); MoNT. REv. CODES ANN. § 46-18-303(2)(1979); S. C. CODE § 16-3-20(C)(a)(2) (Cum. Supp. 1979).

It should also be noted that most statutes include as a mitigating circumstance the fact thatthe defendant has no significant history of prior criminal activity or of previous felonyconvictions, or similar language. One state includes the absence of dangerousness as amitigating circumstance: "It is unlikely that the defendant will engage in further criminalactivity that would constitute a continuing threat to society." MD. ANN. CODE art. 27,§ 413(g)(7) (Cum. Supp. 1979).

u See generally Brief Amicus Curiae For the American Psychiatric Association at 12-15,Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979) (copy on file with the Virginia Law ReviewAssociation); Dix, The Death Penalty, "Dangerousness," Psychiatric Testimony, and Profes-sional Ethics, 5 AM. J. OF CRIM. L. 151 (1977).


Virginia Law Review

person will constitute a continuing serious threat to society. Eventhe most sophisticated criminological studies have been unable todevelop good predictors of serious violence, even among prisonerspreviously convicted of violent crimes. 2 The Supreme Court of Vir-ginia was concerned enough about the speculative quality of thisinquiry that it stated that the "principal predicate for a predictionof future 'dangerousness'" must be the defendant's prior criminalconduct, more specifically, his previous convictions of "seriouscrimes against the person committed by intentional acts of unpro-voked violence." 30

Given the speculative nature of such predictions, it is very im-portant for circuit courts to recognize that a "probability" of dan-gerousness cannot, by law, be established beyond a reasonabledoubt unless this principal predicate of prior convictions has beenestablished. The question then arises whether the prosecution mayalso introduce psychiatric or psychological testimony as additionalevidence of future dangerousness. This evidence has already beenadmitted in several cases.3 1

An increasing number of commentators and experts in forensicpsychiatry/psychology have taken the view that clinical predictionsof future violence are so unreliable and speculative that it is uneth-ical to offer any expert opinion on this issue in the courtroom, espe-cially in capital cases. 32 From a legal standpoint, a strong case canbe made for the more limited proposition that the prosecutionshould not be permitted to offer clinical testimony on the defen-dant's dangerousness unless the defendant himself has alreadydone so. 3

See generally Monahan, The Prediction of Violent Criminal Behavior: A MethodologicalCritique and Prospectus, in DETERRENCE AND INCAPACITATION: ESTIMATING EFFEC'rS OF CImn-NAL SANCTIONS ON CRIME RATES 244 (1978). For specific studies, see, e.g., Kozol, Bouchor &Garolfalo, The Diagnosis and Treatment of Dangerousness, 18 CRImE & DELINQUENCY 731(1972); Wenk, Robison & Smith, Can Violence Be Predicted?, 18 CRIME & DELINQUENCY 393(1972).

10 See Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149, cert. denied, 441 U.S.967 (1979). For a discussion of Smith, see Criminal Procedure, 1978-1979 Virginia Survey, 66VA. L. REv. 261, 264-65 (1980).

3' See, e.g., Giarratano v. Commonwealth, appeal docketed, No. 79-1619 (Va. Feb. 25,1980).12 See note 28 supra.3 See Brief Amicus Curiae on Appeal of the Post-Conviction Assistance Project of the

University of Virginia School of Law at 51-61, Smith v. Commonwealth, 219 Va. 455, 248S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979) (copy on file with Virginia Law Review

[Vol. 66:167


Foreword

Even if such testimony is not categorically excluded, however,the risks of misleading the judge and jury are so great that someguidelines must be developed by the courts and by the mentalhealth professions themselves to restrict and structure the use ofsuch testimony. Although the articulation of such guidelines wouldrange far beyond the scope of this Foreword, I would offer threesuggestions:

(1) An expert witness should decline to offer any opinion on thedangerousness issue unless he has conducted a comprehensive per-sonal examination of the defendant, with extensive attention to de-velopmental and behavioral history, directed specifically at theprobability of future violence." Under no circumstances should anexamination focused on competency to stand trial, or even on thedefendant's mental state at the time of the offense, be used as abasis for formulation of an opinion on dangerousness."

(2) An expert witness should not express an opinion on a defen-dant's dangerousness unless he has special training and experiencein conducting such evaluations, unless he is fully familiar with thedeveloping clinical literature on this subject, and unless he quali-fies his opinions with the observation that clinical predictions offuture violence currently lack empirical validation."

(3) An expert witness asked to express an opinion on a defen-dant's dangerousness should do so only if the opinion derives froma generally accepted diagnostic or psychodynamic framework. Ifthe prediction lacks such a theoretical foundation, it is nothingmore than a lay reaction to the defendant's behavior and does notmerit any weight as an "expert" opinion. Since courts will not ordi-narily possess the clinical sophistication to determine whether anopinion rests on an accepted theoretical foundation, we must de-pend on clinicians themselves, as a matter of professional ethics, tobe sensitive to the limits of their own expertise and to qualify their

Association).- See Dix, supra note 28, at 177-94.3 In Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979), a psychiatrist conducted an examina-

tion of the defendant to determine his competency to stand trial. This psychiatrist laterpresented evidence of the dangerousness of the defendant at the sentencing hearing based onthe competency examination. The defendant was not warned prior to the examination of itsuse for anything other than a determination of competency nor was the psychiatrist everlisted by the state as a witness for the sentencing phase of the trial. The Fifth Circuit foundboth procedures unconstitutional and set aside the death penalty.

4 See Dix, supra note 28, at 175-77, 200-12.

19801



opinions accordingly.I would like to offer two final arguments concerning dangerous-

ness, one addressed to the General Assembly and one to the courts.First, I would propose that where the only concern is that the de-fendant be incapacitated, the General Assembly should provide notfor the death penalty, but for mandatory life imprisonment. Amongthe population of defendants convicted of capital murder, the legis-lature has said the death penalty should be reserved, first, for thosewhose crimes are especially vile or atrocious-appealing to thecommunity's sense of retribution- and, second, for those whoseprior conduct indicates that they are "probable" recidivists. I haveno trouble, in principle, with the "vileness" criterion; perhaps themost outrageous crimes do indeed deserve the ultimate punish-ment.37 But I do have difficulty, in principle, with the dangerous-ness criterion. Why is execution a necessary means of incapacitat-ing those who arouse the most fear?

For the handful of killers whose own behavior has proven thatthe risk of repetition is too great ever to be taken again, why is lifeimprisonment without any chance of parole not a preferable alter-native to the death penalty, at least for those prisoners who preferto live? If our main objective is to assure that the defendant willhave no opportunity to prey upon society again, mandatory life im-prisonment will provide an equally effective means of incapacita-tion. To the extent that the execution is offered as the only way ofassuring that the prisoner will not escape or kill within the prisonwalls, I would respond that effective prison security seems a mor-ally superior alternative to the electric chair.

Let me be clear about what I am proposing. I am not saying thatall persons convicted of capital murder and sentenced to life im-prisonment should be ineligible for parole. Nor am I saying thatcapital punishment should necessarily be abolished in favor ofmandatory life imprisonment. The General Assembly has alreadydetermined that a combination of general deterrence and retribu-tion justify the death penalty for specific premeditated killingsthat involve torture or aggravated battery. What I am saying isthat execution should not be used for purposes of incapacitationalone and, accordingly, that "dangerousness" should not be an

3' See notes 2-3 supra.


Foreword

independent criterion-of-aggravation in a capital sentencingproceeding. If the General Assembly wants to assure incapacitationof those capital murderers whom the jury finds dangerous butwhose killings lack the characteristics of "vileness," it should amendthe capital sentencing statute to require mandatory life imprison-ment in those cases8

In the meantime, circuit court judges sitting in capital sentenc-ing proceedings under the present statute should instruct jurors soas to avoid unwarranted speculation about the incapacitative ef-fects of a life sentence. They are required by the statute to instructthe jury to decide whether the defendant's release would present acontinued threat to society, and if so, whether they wouldrecommend the death penalty in lieu of life imprisonment. Inreaching a decision on this second question, a careful juror wouldwant to know exactly what life imprisonment means. Undoubtedly,jurors are aware that many prisoners, having served less than theirfull sentence, are released on parole. They naturally may wantadditional information about the parole system. In at least two casesthat I am aware of,3" the jury returned to the courtroom and askedthe judge about the possibility of parole. In both cases, the judgeanswered them in the Delphic way that the Supreme Court ofVirginia had directed them to do in ordinary (noncapital) cases whenthe jury recommends the length of a prison term: "If you find the

31 At a minimum, the General Assembly ought to include mandatory life imprisonment asa third sentencing option, aside from death and life imprisonment with parole eligibility.

My suggestions are offered on the assumption that incapacitation is the General Assem-bly's object in these cases. It should be emphasized, however, that the class of persons con-victed of capital murder is both overinclusive and underinclusive with regard to the class ofoffenders whose history of violent criminal behavior provides an appropriate basis, both em-pirically and normatively, for preventive confinement through mandatory life imprisonment.The larger issue of extended terms for dangerous offenders should be confronted on its ownterms, not simply as an incidental by-product of amending the capital sentencing statute.The relevant literature is voluminous. For legislative proposals, see ABA PROJECT ON MINI-MUM STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO SENTENCING ALTERNATIVESAND PaOCEDURES § 2.5 (Approved Draft 1968); NATIONAL CONFERENCE OF COMMISSIONERS ONUNIFORM STATE LAWS, MODEL SENTENCING AND CORRECTIONS ACT § 3-105 (1979); NATIONALADvISoRY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS, CORRECTIONS, Standard5.3 (1973). For commentary, see generally Dershowitz, Preventive Confinement: A SuggestedFramework for Constitutional Analysis, 51 TEx. L. REv. 439 (1975); Perlman & Stebbins,Implementing an Equitable Sentencing System: The Uniform Law Commissioners' ModelSentencing and Corrections Act, 65 VA. L. REv. 1175 (1979); Von Hirsch, Prediction ofCriminal Conduct and Preventive Confinement of Convicted Persons, 21 BUFF. L. REv.717 (1972).

31 Stamper v. Commonwealth, 220 Va. 260, 278, 257 S.E.2d 808, 821 (1979), cert. denied, 100S. Ct. 1666 (1980); Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792 (1979), cert.denied, 100 S. Ct. 741 (1980).

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defendant guilty, you should impose such punishment [within theprescribed statutory range] as you feel is just under the evidence andwithin the instructions of the Court. You are not to concernyourselves with what may happen afterwards."40 In other words, thejury is told nothing.

This is not an adequate response in a capital case. The jury isfirst told to speculate about the defendant's future behavior if hewere released and is then told to speculate, in ignorance, about theparole board's behavior. At a minimum the jury should be told, ina capital case, that the parole board is not supposed to releasesomeone who is dangerous. I strongly urge the judges of the circuitcourts to advise juries in capital cases as follows:

You should not assume that a defendant sentenced to life impris-onment will automatically be set free after a set number of years.The Virginia parole statutes state that "No person shall bi releasedon parole . . .until the Parole Board has determined that his re-lease on parole will be compatible with the interests of the prisonerand of society."'"

In short, if the dangerousness category is going to be a criterion incapital cases, juries should be given all of the information neededto apply the criteria fairly in view of all the relevant circumstances.

B. Psychiatric Testimony or Evidence Relating toMitigating Circumstances

Much more could be said about the proof of aggravating circum-stances under the Commonwealth's capital sentencing statute, es-pecially the sufficiency of evidence to prove "vileness"; I havesingled out the dangerousness criterion only because of the specialproblems raised by expert testimony on this issue. Many difficult

40 See I MODEL JURY INSTRUCTIONS IN VIRGINIA-CRIMINAL 25 (1979) (General InstructionNo. 4-Duty of Jury in Fixing Punishment).

" See VA. CODE ANN. § 53-253 (Repl. Vol. 1978). In Clark v. Commonwealth, 220 Va. 201,257 S.E.2d 784 (1979), the Supreme Court of Virginia stated, in response to the argument thatthe trial court should have charged the jury as to the date of parole eligibility, that "[plaroleand pardon are not proper matters for consideration by a jury." 'Id. at 214, 257 S.E.2d t 792.See also Stamper v. Commonwealth, 220 Va. 260, 278, 257 S.E.2d 808, 821 (1979). However,the Court based its ruling entirely on precedent involving noncapital convictions, see Hintonv. Commonwealth, 219 Va. 492, 247 S.E.2d 704 (1978); unlike other sentencing determinations,the capital sentencing statute specifically requires the jury to determine the likelihood that thedefendant will constitute a continuing threat to society.


Foreword

questions also remain unresolved in connection with proof of miti-gating circumstances, including the nature of the defendant's bur-den of proof in establishing the statutorily specified circumstancesand the relationship of aggravating and mitigating circumstanceswith the substantive rule by which the jury is to decide whether torecommend the death penalty. For present purposes, however, I willfocus only on one aspect of a defendant's case-in-mitigation-thecontours and impact of expert testimony concerning psychologicalabnormality.

Clinical evaluation and testimony will be sought by the defense,as a matter of course, in capital cases. This is because the defensemust try to persuade the judge and jury, at a minimum, that theoffender's homicidal behavior is only understandable in terms ofsome underlying psychopathology or mental abnormality-andthat it would therefore be unjust to execute him. Undoubtedly, thedefense would also like to persuade the jury that the defendant isnot beyond rehabilitation or redemption. In any event, it is clearthat the defendant's case-in-mitigation-if there is to be one atall-must be built on a foundation of psychiatric testimony.

The indispensability of psychiatric testimony in capital cases isfurther assured by the restricted coverage of most capital sentenc-ing statutes. The United States Supreme Court has implied thatonly homicide can be punished by the death penalty;" moreover, inVirginia, as in most states, a person cannot be convicted of capitalmurder (or sentenced to death) unless the killing was premedi-tated.' 3 For this reason, these cases will lack the type of extenuat-ing evidence concerning provocation or excuse that customarilyleads to convictions of less serious forms of homicide, such as seconddegree murder or manslaughter. In short, most capital cases willinvolve homicidal behavior that defies jury understanding andsympathy.

Two themes of the U.S. Supreme Court's death penalty decisionsrun in opposing directions. On the one hand, the Court has said

42 In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that imposition of the death

penalty for the crime of rape was cruel and unusual punishment. It intimated, however, thatthe death penalty might be excessive for any crime not involving the taking of human life.Id. at 598.

3 In Virginia, capital prosecutions, by definition, will involve homicide defendants with ahistory of violent crime or whose capital crimes are characterized by abnormal brutality. Alarge percentage-maybe even a majority-of the cases in which the death penalty is soughtby the prosecution involve rape-murder.

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that discretion must be limited by normative constraints-thejudge and jury must be given a substantive basis for choosing be-tween-life and death. On the other hand, the Court has insistedthat the decision must be individualized and the defendant mustbe given an opportunity to offer not only some but any evidencewhich he thinks will have mitigating impact in order to persuadethe judge or jury to spare him. In other words, mitigating circum-stances may not be limited in the effort to squeeze discretion out ofthe system.

Nowhere is this tension more apparent than in connection withmitigating mental abnormality. In Virginia, as in other states, thedefendant may summon a clinical expert to offer any opinion thatmay be relevant to the sentencing decision." The door is wide opento testimony ranging from the defendant's painful childhood, whichmay arouse the jurors' sympathy, to testimony relating to his po-tential for rehabilitation, which may dampen their fears. In thissense, the expert's participation in a capital sentencing proceedingis not substantially different from his role in an ordinary sentenc-ing hearing governed by the ethos of individualization.

Capital sentencing proceedings, however, are different from or-dinary sentencing proceedings by virtue of the effort to specifymitigating circumstances and thereby guide the jury's decision. InVirginia, as in most other states, the legislature defined a thresholdof significance for mitigating mental abnormality:

Facts in mitigation may include, but shall not be limited to, thefollowing:

(ii) the capital felony was committed while the defendant wasunder the influence of extreme mental or emotional disturbance or

(iv) at the, time of the commission of the capital felony, the ca-pacity of the defendant to appreciate the criminality of his conductor to conform his conduct to the requirements of the law was signif-icantly impaired .... 1

"4 In Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979), cert. denied, 100 S. Ct.1069 (1980), the Supreme Court of Virginia held that VA. CODE ANN. § 19.2-264.4(B) (Cum.Supp. 1979) vests discretion in the trial judge to determine, subject to rules governing theadmissibility of evidence, specifically rules of relevance, the evidence which may be adducedin mitigation of the offense. 220 Va. at 253, 257 S.E.2d at 804.

11 See VA. CODE ANN. § 19.2-264.4(B) (Cum. Supp. 1979). Only three other "facts in miti-gation" are specifically mentioned: The defendant's "age"-presumably his youthfulness;

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Foreword

These provisions are drawn directly from the American Law Insti-tute's Model Penal Code,4" which uses parallel language in otherCode sections concerning the law of homicide and the insanitydefense.

Thus, the first provision ("extreme mental or emotional distur-bance") resembles the culpability formulation used by the draftersof the Code to distinguish murder from manslaughter;" it is similarto the common-law concept of "heat of passion," reflecting themoral proposition that people who kill when they have been pro-voked and have become angry, fearful, or stressed are not as culpa-ble as those who kill without provocation and stress. The key pointis that in distinguishing between murder and manslaughter, themoral relevance of this acute psychological distress depends uponadequate or reasonable external provocation; the defendant is notguilty of murder if the judge and jury can begin to understand howa reasonably normal person could have been provoked under thecircumstances.

Under the capital sentencing statute, however, the universe ofdefendants is, by virtue of their convictions for capital murder,limited to those who were not provoked and who were not soacutely disturbed that they lacked the capacity to "premeditate,"as the law defines it. Thus, if we think about this language ("ex-treme mental or emotional disturbance") in the legal context of acapital sentencing proceeding, we find ourselves in a moral twilightzone where the defendant is, by common consensus, culpableenough to deserve life imprisonment and yet where some hypothe-sized idiosyncratic and abnormal psychological response may miti-gate his culpability enough so that it is unjust to put him to death.The nature of the moral question is thus considerably differentfrom that asked in any other type of criminal proceeding-and so isthe threshold of clinical significance."

the absence of a "significant history of prior criminal activities;" and participation or con-sent by the victim-which seems wholly unlikely in any of the situations which constitutecapital murder. Since the youthfulness and behavioral history of the defendant do not haveany meaning independent of some hypothesis about the psychological determinants of, orinfluences on, his behavior, it seems clear that the expert witness will in most cases be theprimary source of evidence concerning the mitigating circumstances specified in the statute.

" See MODEL PENAL CODE § 210.6, Alternative Formulation of Subsection 2 (Proposed Of-ficial Draft, 1962).

'7 Id. at § 210.3(1)(b).," It is worth noting, in passing, that these abnormal psychological responses are not so

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The second of the statutory formulations concerning mitigatingmental abnormality has similar implications. The statutory lan-guage is similar to the American Law Institute's "test" for criminalresponsibility: the jury is asked to determine whether the defen-dant's "capacity to appreciate the criminality of his conduct or toconform his conduct to the requirements of the law was signifi-cantly impaired." This language differs from the Model PenalCode's insanity test in two respects: First, it substitutes the term"significantly" for the term "substantially"; second-and moreimportant-it omits the requirement that this incapacity beattributable to an underlying "mental disease or defect.""

Thus, for purposes of capital sentencing, the concept of mitigat-ing mental abnormality has been detached from the medicalmodel. This is hardly a minor editorial omission. Indeed, only itsmooring to the medical model keeps the insanity defense from be-ing loosed in a sea of determinism.

The longstanding debate over the scope and phraseology of thedefense of insanity bottoms on the need to accommodate the law'spostulate of free will with its acknowledgment that a wide spec-trum of forces, including the law itself, shape human behavior. Ab-errational intrapsychic functioning sometimes appears to be such apotent force that it seems fundamentally unjust to hold some indi-viduals criminally accountable for their "resulting" conduct. Forthe most part, those who formulate the law have tried to limit theboundless inquiry regarding the factors which determine humanbehavior by relying on the medical model of severe mental illnessto provide a conceptual stopping point. Thus, the "mental diseaseor defect" threshold-which must be crossed before the law will en-tertain claims that a person's ability to appreciate the criminalityof his behavior or to control his conduct were impaired-is charac-teristic of all ins'anity formulations.

The substantive inquiry in a capital sentencing proceeding, bycontrast, is not restricted to behavioral impairments arising out ofmental disease or defects. The door in this sense is open to the full

abnormal that a layperson will automatically recognize "craziness" or "sickness"; and thedefendant-or the testifying clinician-faces an uphill battle even in depicting the acutepsychological dysfunction in a way that will make any sense to laymen. This has been espe-cially apparent in the rape-murder cases which have thus far been tried under the revisedVirginia statute.,1 See MODEL PENAL CODE § 4.01(1) (Proposed Official Draft, 1962).

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spectrum of explanations that may be offered, including pure psy-chodynamic formulations rooted in the developmental sequence ofthe defendant's life. Because of this key substantive difference be-tween the concepts of exculpatory mental abnormality and mitigat-ing mental abnormality, the revised capital sentencing proceduresplace the clinician on entirely new terrain. Professional organiza-tions should focus on the implications of this new legal environ-ment for forensic psychology and forensic psychiatry.

On the one hand, it is inappropriate and unacceptable for theexpert to regard the inquiry at the capital sentencing phase as themirror image of the inquiry concerning criminal responsibility.When the forensic expert is asked to conduct an evaluation in acapital case, it is entirely insufficient for him to conduct the essen-tial threshold inquiry characteristic of the insanity defense andconclude that because he found the defendant not mentally ill atthe time of the offense, he cannot offer helpful psychological evi-dence. On the other hand, it is equally inappropriate for the expertto assume that the law has now abandoned its postulate of free willand is opening the door to an unbounded scientific determinism.The law still seeks to draw its fundamental moral line between aperson who has chosen evil, regardless of the forces which shapethe development of his character, and the person whose homicidalbehavior arose from a significant impairment of his normal psycho-logical controls. We are here seeking to ascertain and understandthe interaction of the person, with all of his characterological pre-dispositions and weaknesses, and the external environment, withspecial attention to its psychological impact on him at the time ofthe homicidal behavior. Yet the expert must also recognize that themoral gradient is still there; the capacity of all capital defendantsto control their behavior is not significantly impaired, and not allcapital defendants, regardless of the nature of their crimes, wereunder extreme emotional distress. These are the "ultimate" issuesof value and moral judgment which the jury and judge will have toresolve. The clinician's task is to provide the information, howeverspeculative and uncertain, to assist them to do so.

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Virginia Law Review

C. Pretrial Evaluation Procedures

The indispensability and special complexity of psychiatric testi-mony in capital cases has several implications for pretrial evalua-tion procedures. In order to reduce the risks of unfairness and in-consistency in the administration of the capital sentencing statutes,I offer the following recommendations:

(1) An indigent defendant charged with a capital crime shouldbe provided a comprehensive forensic evaluation, at state expense,to assist his attorney in exploring and presenting his "defenses,"including evidence in exculpation or mitigation. Because this eval-uation should be viewed as essential to the effective assistance ofcounsel," the evaluation should be conducted for the defense by aqualified forensic specialist on terms similar to those arranged bydefendants with means to pay for their own defense. 51 On the otherhand, if the defense gives notice of its intent to present forensictestimony in exculpation or mitigation, the state should be entitledto compel the defendant to undergo another examination, whichcould be performed by the forensic specialists in the state mentalhealth system or by any other forensic expert.2

A defendant who refused to cooperate with the state examinerwould forfeit his right to introduce expert testimony as part of hiscase-in-mitigation. However, the fifth amendment interests of thedefendant, as well as the integrity of the evaluation process, mustbe protected by an unequivocal rule precluding the prosecution

10 Cf. Wood v. Zahradnick, 578 F.2d 980 (4th Cir. 1978) (holding that a defendant wasdenied effective assistance of counsel when the attorney failed to conduct an adequate inves-tigation of potential defenses based on mitigating mental abnormality). See generally Note,The Indigent's Right to an Adequate Defense: Expert and Investigational Assistance inCriminal Proceedings, 55 CORNELL L. REv. 632 (1970).

1, It may be argued that the indigent defendant should be entitled to an evaluation by anexpert of his own choosing, rather than by state forensic examiners, on the ground thatexaminations in forensic units are of inferior quality when compared with examinations byprivate clinicians. Whether or not this proposition is accepted for noncapital cases, I believethat special evaluation procedures are required in capital cases. The indigent capital defen-dant should have access to an expert evaluation by a clinician of his own selection, withinappropriate limitations of cost and administrative convenience; and, if the prosecution orcourt so requests, the defendant should also be examined by, a clinician in the state system:This will assure the defendant that he is being treated fairly and will also enhance thereliability of the fact-finding process since more than one opinion will be available.

52 Cf. United States v. Albright, 388 F.2d 719 (4th Cir. 1968) (holding that the districtcourt had inherent authority to order psychiatric examination of a defendant who pleadedinsanity and presented psychiatric evidence supporting his plea).

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Foreword

from introducing, as part of its case on guilt or in aggravation ofsentence, any statements concerning the present offense or anyprior criminal activity which are made by the defendant during thecourse of any pretrial psychiatric examination.5 3

(2) Clinicians who conduct pretrial forensic evaluations of de-fendants charged with capital crimes must become familiar withthe unique range of issues which are raised in a capital sentencingproceeding. Whenever testimony is contemplated at the sentencingphase, it is clearly insufficient for the examiner to limit his formu-lation to opinions concerning competency to stand trial and crimi-nal responsibility. The clinical information and opinions likely tobe sought in a capital sentencing trial are both more complex andmore subtle than in most other legal settings. Here, as in other ar-eas discussed in this Foreword, the law must depend on the mentalhealth professions themselves to develop ethical guidelines for par-ticipation in capital sentencing proceedings; ultimately, the fair-ness of the process may depend on a shared sense of profound pro-fessional responsibility within the bar and within the mental healthdisciplines.

IV. CONCLUSION

By requiring the states to individualize the capital sentencingprocess, the Supreme Court has virtually assured routine participa-tion by psychiatrists and other mental health experts.5' One mightask who is better qualified than the trained clinician to present evi-dence on the "character and record of the individual offender" andthe "mitigating factors stemming from the diverse frailties ofhumankind."5

Yet, the role of clinician is being expanded in capital cases atprecisely the same time that the validity and reliability of experttestimony by mental health professionals is being challenged onvirtually every other front. Recent reforms of the civil commitmentstatutes are based, in significant measure, on doubts about the ac-curacy of clinical determinations, and some commentators have

See Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979); Gibson v. Zahradnick, 581 F.2d 75(4th Cir.), cert. denied, 439 U.S. 996 (1978).

" See Dix, Participation by Mental Health Professionals in Capital Murder Sentencing, 1INT'L J. L. & PSYCH. 283, 285, 304 (1978).

" See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (opinion of Stewart, Powell,and Stevens, JJ.).

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claimed that psychiatric assessments of imminent dangerousness areno more trustworthy than "flipping coins in the courtroom."58

Similarly, the increasingly popular proposals to abolish the insanitydefense are partly responsive to beliefs that expert testimonyregarding a defendant's state of mind at some time in the past lacksan objective scientific foundation.57 Finally, retributive ("justdesert") sentencing reforms that link severity of punishment moreclosely to the seriousness of the offense are motivated in large part bya belief that it is not possible to predict an offender's future behaviorand to tailor the disposition accordingly." At bottom this is anattack on the ethos of individualization and its alliance with theclinical method, and those reforms will, wherever adopted, un-doubtedly decrease the role played by clinicians in most sentenc-ing proceedings.59

By pointing out these contradictory developments, I do not meanto imply that the Supreme Court's 1976 death penalty decisionswere wrong. I think the Court was reflecting a widely shared moralperception that it is unjust to condemn someone to the electricchair without asking who he is and how he came to do what he did.We may be confused and uncertain about the "causes" of his be-havior but we should not remain indifferent to them. For this rea-son, we should insist, as the Court has done, that the decisionwhether or not to impose the death penalty be made only after aconcerted effort to uncover the psychological roots of his homicidalbehavior.

But these trends should call to our attention the risks-of errorand abuse-that inhere in the process of applying the revised capi-tal sentencing statutes. We must be sensitive to the limits of ourknowledge. Even the best clinical testimony merely casts somelight into a room that remains very dark. What is worse, cliniciansmay err and be influenced by their own biases, and some may be

See Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in theCourtroom, 62 CALIF. L. REv. 693, 711-17 (1974).5' See, e.g., Morse, Crazy Behavior, Morals and Science: An Analysis of Mental Health

Law, 51 S. CAL. L. REV. 527, 640-45 (1978)."See N. MORRIS, THE FUTURE OF IhoiSONmENT 58-77 (1974); A. VON HIRSCH, DOING Jus-

TICE (1976); Perlman & Stebbins, supra note 38.5, See generally Dershowitz, The Role of Psychiatry in the Sentencing Process, 1 INT'L J.

L. & PSYCH. 63, 71-77 (1978).

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1980] Foreword 189

more convinced than they ought to be about the validity and relia-bility of their clinical impressions. The imperfections of forensicevaluation and the fortuities of courtroom testimony-which haveprovoked endless debate in the context of the insanity defense-areonly exacerbated in the context of a capital sentencing proceeding,where the stakes are disturbingly high.

If this system is to be just, we must be sensitive to the problemsin its administration. My own concern is that these problems arenow being ignored. Before we send a fellow human being to theelectric chair, we should give him every reasonable opportunity topersuade us why we should not condemn him. This places a heavyresponsibility on those of us who administer the law to do so fairly.And, as I have tried to demonstrate, it also places a heavy burdenon those who claim to be experts on the aberrations of the humanmind to be sensitive both to the significance of their role and thelimits of their knowledge.


(,1 2 1/,1( · this translation from the abstract acceptability of the death penalty to its...

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